MOVE TO CHARGE MILOSEVIC AS A WAR CRIMINAL GAINS SPEED

By Charles Trueheart

Washington Post Service - Tne International Herald Tribune, May 12, 1999

PARIS - In the usually discreet world of the international war crimes tribunal, it is an open secret that investigators are collecting evidence that could make President Slobodan Milosevic of Yugoslavia the first sitting chief of state in modern history to be indicted on war-crimes charges. Prosecutors are lobbying NATO countries to provide intelligence data that could help bolster the case against Mr. Milosevic and his senior commanders in the killing and mass expulsion of civilians in Kosovo. The French government turned over a number of such documents last week, following similar public gestures by Britain and Germany. At tribunal offices in The Hague, testimony from refugees is pouring in through nongovernmental humanitarian and human-rights groups working in refugee camps in Albania and Macedonia, all but overwhelming a legal staff with account upon account of atrocities. ''There's not a single refugee coming out of there who doesn't have something to contribute,'' said Louise Arbour, the tribunal's chi

ef prosecutor. While legal experts say evidence makes it clear that war crimes have occurred in Kosovo, there is less certainty about the kind of case that could be built against Mr. Milosevic. The effort is complicated by unfolding events that have kept key evidence from investigators and by the possibility that an indictment - enthusiastically sought by North Atlantic Treaty Organization allies several weeks ago - might now interfere with a diplomatic settlement of the Kosovo conflict. Richard Goldstone, the tribunal's former chief prosecutor, said an indictment ''would make it impossible to negotiate with him, but I would hope no Western leader would sit down with Milosevic anyway.'' The International Criminal Tribunal for the Former Yugoslavia, set up six years ago in The Hague by the UN Security Council, was chartered to investigate crimes in the factional war in Bosnia from 1992 to 1995. But from the outset it has claimed, with Security Council support, jurisdiction over all of the former six-republic

Yugoslav federation, and the enormity of events in Kosovo has caused that conflict to displace Bosnia as its main business. Unlike Bosnia, where assessing criminal responsibility has been a largely historical exercise, crimes are occurring in Kosovo in what the prosecutors call ''real time.'' The same intelligence-gathering conducted by NATO countries to plot air strikes and assess bomb damage is pertinent to tribunal lawyers seeking to build a case against Mr. Milosevic and senior military and police commanders. Among legal experts both within and outside the tribunal's orbit, there is some debate about whether Mr. Milosevic is ultimately responsible for the horrors of Kosovo: summary executions, mass detentions, forced marches, torture, rape, looting, burning and a host of subsidiary savageries that constitute crimes under the post-World War II Geneva Conventions that codified international criminal law. If the crimes were conducted because of the victims' ethnicity or religion, that makes them not merely

crimes against humanity but genocide, the gravest charge the tribunal could bring against Mr. Milosevic, and perhaps the toughest to substantiate. Even so, Mr. Goldstone said, ''there is no suggestion'' that Mr. Milosevic ''doesn't know what is going on. He's the head of state. There are crimes against humanity being carried out by his troops. I don't see any missing legal link in the chain of command.'' Responsibility for authorizing war crimes, as distinct from commission of the crimes, is not difficult to define. ''Even assuming he hasn't given the orders,'' Mr. Goldstone said, ''it would be sufficient that he could have stopped them and didn't.'' Ms. Arbour said the hardest proof of war crimes gathered so far was in the hands ofthe Western governments she has been courting for help - and it is the most jealously guarded kind of intelligence. Photographic imagery from high-flying surveillance aircraft can show mass graves one day where none existed the day before and even identify the military units in t

he area at the time. More useful yet are electronic intercepts and other surreptitiously recorded conversations that could link front-line officers to field commanders to ranking generals to Mr. Milosevic, establishing who gave orders to do what.